PROLIANT ESSENTIALS SOFTWARE
END USER LICENSE AGREEMENT
PLEASE READ THIS END USER LICENSE AGREEMENT ("AGREEMENT") CAREFULLY. THIS
AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR SINGLE
ENTITY) ("YOU") AND HEWLETT-PACKARD COMPANY ("HP"). BY CLICKING THE "AGREE"
BUTTON BELOW, COPYING, INSTALLING, OR OTHERWISE USING THE SOFTWARE,
(i) YOU DO SO WITH THE INTENT TO ELECTRONICALLY "EXECUTE" THIS AGREEMENT, AND
(ii) YOU AGREE TO BE BOUND BY AND COMPLY WITH THE FOLLOWING TERMS AND
CONDITIONS, INCLUDING THE WARRANTY STATEMENT, AS WELL AS ANY TERMS AND
CONDITIONS CONTAINED IN THE "ANCILLARY SOFTWARE" LIST.
IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT,
(A) IF THIS AGREEMENT IS DISPLAYED ELECTRONICALLY, YOU MAY INDICATE REJECTION
OF THIS AGREEMENT BY CLICKING THE "DISAGREE" BUTTON;
(B) YOU SHALL NOT INSTALL THE SOFTWARE; AND
(C) HP DOES NOT GRANT YOU ANY RIGHTS TO USE THE SOFTWARE.
NOTWITHSTANDING THE FOREGOING, INSTALLING OR OTHERWISE USING THE SOFTWARE
INDICATES YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU PURCHASED THE SOFTWARE, YOU MAY RETURN THE SOFTWARE TO THE PLACE OF
PURCHASE FOR A FULL REFUND.
THE SOFTWARE PROVIDED HEREIN, IS PROVIDED BY HP AND BY THIRD PARTIES, INCLUDING
THE OPEN SOURCE COMMUNITY ("ANCILLARY SOFTWARE"). USE OF THE HP SOFTWARE, THE
ANCILLARY SOFTWARE, ACCOMPANYING PRINTED MATERIALS, AND THE "ONLINE" OR
ELECTRONIC DOCUMENTATION (COLLECTIVELY THE "PRODUCT") IS CONDITIONED UPON AND
LIMITED BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING THE "AS IS WARRANTY
STATEMENT" AND THE TERMS AND CONDITIONS OF THE ANCILLARY SOFTWARE LICENSE
AGREEMENTS ("ANCILLARY SOFTWARE LICENSES").
USE OF ANCILLARY SOFTWARE SHALL BE GOVERNED BY THE ANCILLARY SOFTWARE LICENSE,
EXCEPT THAT THE DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITIES
PROVISIONS CONTAINED IN THE "AS-IS WARRANTY STATEMENT" OF THIS AGREEMENT SHALL
ALSO APPLY TO SUCH ANCILLARY SOFTWARE. HP HAS IDENTIFIED ANCILLARY SOFTWARE
BY EITHER NOTING THE ANCILLARY SOFTWARE PROVIDER"S OWNERSHIP WITHIN EACH
ANCILLARY SOFTWARE PROGRAM FILE AND/OR BY PROVIDING LICENSING INFORMATION IN
THE "ANCILLARY SOFTWARE" LIST. BY ACCEPTING THE TERMS AND CONDITIONS OF THIS
AGREEMENT, YOU ARE ALSO ACCEPTING THE TERMS AND CONDITIONS OF EACH ANCILLARY
SOFTWARE LICENSE IN THE ANCILLARY SOFTWARE LIST.
IF AND ONLY IF THE PRODUCT INCLUDES SOFTWARE LICENSED UNDER THE GNU GENERAL
PUBLIC LICENSE ("GPL SOFTWARE"), YOU MAY OBTAIN A COMPLETE MACHINE-READABLE
COPY OF THE GPL SOFTWARE SOURCE CODE ("GPL SOURCE CODE") BY DOWNLOAD FROM A
SITE SPECIFIED IN THE FOLLOWING HP WEBSITE:
HTTP://H18004.WWW1.HP.COM/PRODUCTS/SERVERS/PROLIANTESSENTIALS/VALUEPACK/LICENSING.HTML.
UPON YOUR WRITTEN REQUEST, HP WILL PROVIDE, FOR A FEE COVERING THE COST OF
DISTRIBUTION, A COMPLETE MACHINE-READABLE COPY OF THE GPL SOURCE CODE, BY MAIL,
TO YOU. INFORMATION ABOUT HOW TO MAKE A WRITTEN REQUEST FOR GPL SOURCE CODE
MAY BE FOUND AT THE FOLLOWING WEBSITE:
HTTP://H18004.WWW1.HP.COM/PRODUCTS/SERVERS/PROLIANTESSENTIALS/VALUEPACK/LICENSING.HTML .
LICENSE TERMS
SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ANY RIGHTS,
LIMITATIONS AND OBLIGATIONS SET FORTH IN THE ANCILLARY SOFTWARE LICENSES:
1. LICENSE GRANT
a. IF SOFTWARE DOES NOT REQUIRE AN ACTIVATION KEY. If the Software does
not require an Activation Key and provided that You comply with all the terms
and conditions of this Agreement, HP grants You a non-exclusive,
non-transferable (except as provided in Section 16), worldwide (except for the
countries referenced in Section 12) license under HP's copyrights, to install,
copy on as many computers as you need for your business, use, execute, make
archival or backup copies, and display ("Use") the object code version of the
Product on the computer(s) on which this Product is installed and in the
operating environment as identified by HP in the accompanying materials.
b. IF SOFTWARE REQUIRES AN ACTIVATION KEY. If the Software requires an
Activation Key, and provided that You comply with all terms and conditions of
this Agreement, then depending upon the specific hardware configuration You
employ, HP grants You the following license ("License Type") and rights:
Authorized Copies. You are licensed to install, make Authorized Copies
of (as defined in this section), execute, and display ("Use") the object code
version of the Product on an equivalent number of Computers, Host/Client Pairs,
Computer Nodes, or Clustered Computers (as defined in the table below) as you
have Authorized Copies. Authorized Copies is defined as the number of copies
that you have paid for as stated in the invoice or comparable document
evidencing an authorized quantity.
LICENSE TYPE SOFTWARE INSTALLS TO: LICENSED RIGHTS
(hardware configuration)
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Computer A computer You have a right to install
and Use the Product on a single
computer. The installed copy
may not be transferred to or
used on any other computer.
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Node/Client A set of computers with a You have a right to install and
minimum of one host and one Use the Product on a Host/Client
client connected to each Pair or a Single Node. Copies
other ("Host/Client Pair"), of the Product installed on a
or in certain instances, a Host/Client Pair or Single Node
single computer may not be transferred to any
("Single Node") other host or client computers
or other single nodes. You can
continue to Use the Product on
licensed clients when a new
server is introduced to the
licensed clients.
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Cluster More than two computers You have a right to install and
physically connected together Use the Product on each
in a cluster configuration Clustered Computer. The
(each of which is referred to installed copy may not be
as "Clustered Computer") transferred to or used on any
other computer.
Storage. You may copy the Product into the local memory or storage
device of the hardware configuration loaded with the Authorized Copies. You may
copy the Product onto a reasonable number of network servers or a secure
intranet for the sole purpose of distributing the Product to the Computers,
Host/Client Pairs, Computer Nodes, or Clustered Computers. You may make
archival or back-up copies of the Product. You shall keep the activation key
with the hardware configuration to which the activation key is licensed. You
should keep copies of the activation key information for future retrieval
purposes.
2. NEW RELEASES. "New Release" means a release of the Product that may
contain fixes, corrections, or minor improvements to the Product. New Releases
are distributed from time to time solely at the option of HP. If HP offers a
New Release, it may come with its own terms and conditions, however if it does
not, You may use the New Release only under the terms and conditions of this
Agreement.
3. NEW VERSIONS. "New Version" means a version of the Product that may
contain significant changes, enhancements, and/or functional improvements to
the Product. New Versions are distributed solely at the option of HP. If HP
offers a New Version, it may come with its own terms and conditions, however
if it does not, You may use the New Version only under the terms and conditions
of this Agreement.
4. OWNERSHIP. The Product is owned and copyrighted by Hewlett-Packard
Development Company, L.P., HP's intellectual property management company, and
by third party suppliers, except for the Ancillary Software, which is owned and
copyrighted by the Ancillary Software providers indicated in the ANCILLARY
SOFTWARE list. Your right to Use the Product confers no title or ownership and
is not a sale of the Product or any part thereof. Third party suppliers and
Ancillary Software providers are intended beneficiaries under this Agreement
and may protect their rights in their respective portions of the Product
directly against You.
5. TRANSFER. Without the prior written consent of HP, or unless
specifically permitted in the Ancillary Software License, You have no right
(a) to rent, lease, lend, or otherwise transfer the rights to the Product to
anyone else; (b) to Use the Product for commercial timesharing or bureau use;
or (c) to copy the Product onto any public or distributed network.
6. COPYRIGHT. United States copyright laws, other countries' copyright
laws, and international treaty provisions protect the Product. You shall not
remove any product identification, copyright notices, or proprietary notices
from the Product.
7. SUPPORT. Support terms and conditions and contact information are
detailed in the Worldwide Limited Warranty and Technical Support for Industry
Standard Server Products statement ("Support Statement"), a copy of which is
available on the HP web site at www.hp.com. Subject to the terms of the
Support Statement, for HP software products installed on HP computers,
technical support for questions regarding media and Product installation may
be available for a ninety (90) day period from the date of purchase of the HP
computer on which this Product is installed ("Support Term"). To access this
support in North America, call the HP Technical Support Phone Center at
1-800-652-6672. This service is available during normal business hours,
Monday through Friday, during the Support Term. Outside North America, call
the nearest HP Technical Support Center. No other support, including
without limitation any on-site support, is provided under this Agreement.
8. LIMITATION ON REVERSE ENGINEERING. Reverse engineering of Ancillary
Software shall be governed by its respective Ancillary Software License. As
for the remainder of the Product, You shall not modify, disassemble, reverse
engineer, decompile, decrypt, or otherwise attempt to access or determine the
source code of the Product without HP's prior written consent. Where You have
other statutory rights with regard to software, You shall provide HP with
reasonably detailed information regarding any intended disassembly or
decompilation of the Product prior to performing such disassembly or
decompilation. You shall not decrypt the Product unless necessary for the
licensed Use of the Product.
9. RESERVATION OF RIGHTS. HP, its third party suppliers, and Ancillary
Software providers reserve all rights not expressly granted to You in this
Agreement.
10. TERM AND TERMINATION. You may exercise the rights of this Agreement
and of the Ancillary Software Licenses for a period of time starting at Your
acceptance of the terms and conditions of this Agreement and for so long as
You meet such terms and conditions ("Term"). Notwithstanding the foregoing,
HP may terminate Your right to Use the Product, upon notice, for Your failure
to comply with any such term or condition. Immediately upon termination, You
shall remove, destroy, or return to HP all copies of the Product, including
those copies of the Product that are merged into Your adaptations, except for
individual pieces of data in Your database. With HP's prior written consent,
one copy of the Product may be retained, for archival purposes only, subsequent
to termination. You may terminate this Agreement at any time by returning or
destroying the Product together with merged portions in any form.
11. CONFIDENTIAL COMPUTER SOFTWARE. Valid license from HP required for
possession, use, or copying. Consistent with FAR 12.211 and 12.212, Commercial
Computer Software, Computer Software Documentation, and Technical Data for
Commercial Items are licensed to the U.S. Government under vendor's standard
commercial license.
12. COMPLIANCE WITH LAW. The Product and any associated hardware,
software, technology or services may not be exported, reexported, transferred
or downloaded to persons or entities listed on the U.S. Department of Commerce
Denied Persons List, Entity List of proliferation concern, or on any U.S.
Treasury Department Designated Nationals exclusion list, any country under
U.S. economic embargo, or to parties directly or indirectly involved in the
development or production of nuclear, chemical, biological weapons or in
missile technology programs as specified in the U.S. Export Administration
Regulations (15 CFR 744). By accepting this Agreement You confirm that You
are not (i) located in (or a national resident of) any country under U.S.
economic embargo, (ii) identified on any U.S. Department of Commerce Denied
Persons List, Entity List or Treasury Department Designated Nationals exclusion
list, and (iii) directly or indirectly involved in the development or
production of nuclear, chemical, biological weapons or in missile technology
programs as specified in the U.S. Export Administration Regulations.
13. APPLICABLE LAW. This Agreement shall be construed in accordance with
the laws of the State of Texas, without regard to conflict of laws principles.
The United Nations Convention on Contracts for the International Sale of Goods
is specifically disclaimed. If the Product was acquired outside the United
States, then local law may apply.
14. SEVERABILITY. If any term or provision of this Agreement is determined
to be illegal or unenforceable, the validity or enforceability of the remainder
of the terms or provisions herein will remain valid and in full force and
effect. Failure or delay in enforcing any right or provision of this Agreement
shall not be deemed a waiver of such right or provision with respect to any
subsequent breach. Provisions herein, which by their nature extend beyond the
termination of the license in the Product, will remain in effect until
fulfilled.
15. CONSENT TO USE OF DATA. You agree that HP may collect and use technical
information that You provide in connection with Your Use and request for
technical support of the Product from HP, however, HP will not use this
information in a form that personally identifies You.
16. ASSIGNMENT. You may not assign, sublicense or transfer this Agreement,
the Product, or any rights or obligations hereunder without the prior written
consent of HP. Any such attempted assignment, sublicense, or transfer will be
null and void, and in such event, HP may terminate this Agreement immediately.
Notwithstanding the foregoing, You may assign this Agreement and the rights
granted hereunder with the transfer of all or substantially all of Your
business. The right to assign or transfer Ancillary Software is governed by
the terms and conditions of the Ancillary Software Licenses.
17. ENTIRE AGREEMENT. This Agreement, including all Ancillary Software
Licenses in the ANCILLARY SOFTWARE list, is the final, complete and exclusive
agreement between You and HP relating to the Product, and supersedes any
previous communications, representations, or agreements between the parties,
whether oral or written, regarding the subject matter hereof. Any additional
or different terms and conditions not expressly set forth herein will not
apply. This Agreement may not be changed except by an amendment signed by an
authorized representative of both You and HP. To the extent the terms of any
HP policies or programs for support services conflict with the terms of this
Agreement, the terms of this Agreement shall control.
18. WARRANTY
a. NO ACTIVATION KEY REQUIRED SOFTWARE - AS-IS WARRANTY STATEMENT:
DISCLAIMER. TO THE EXTENT ALLOWED BY APPLICABLE LAW, THIS PRODUCT AND
SUPPORT SERVICES, IF ANY, ARE PROVIDED TO YOU "AS IS" WITHOUT WARRANTIES OF
ANY KIND, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED. HP SPECIFICALLY
DISCLAIMS ANY IMPLIED WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION,
WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, TITLE,
ACCURACY OF INFORMATIONAL CONTENT, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY
OR COMPLETENESS OF RESPONSES, RESULTS, OR WORKMANLIKE EFFORT, LACK OF VIRUSES,
AND LACK OF NEGLIGENCE, ALL WITH REGARD TO THE PRODUCT, AND THE PROVISION OF
OR FAILURE TO PROVIDE SUPPORT SERVICES. IN ADDITION, WITHOUT LIMITATION,
THERE IS NO WARRANTY OF QUIET ENJOYMENT, QUIET POSSESSION AND CORRESPONDENCE
TO DESCRIPTION WITH REGARD TO THE PRODUCT. YOU ASSUME THE ENTIRE RISK AS TO
THE RESULTS AND PERFORMANCE OF THE PRODUCT. NO ORAL OR WRITTEN INFORMATION OR
ADVICE GIVEN BY HP, HP"S AUTHORIZED REPRESENTATIVES, OR ANY OTHER PARTY SHALL
CREATE A WARRANTY OR AMEND THIS "AS IS" WARRANTY. Some jurisdictions do not
allow exclusions of implied warranties or conditions, so the above exclusion
may not apply to You to the extent prohibited by such local laws. You may have
other rights that vary from country to country, state to state, or province to
province.
b. ACTIVATION KEY REQUIRED SOFTWARE - LIMITED WARRANTY.
HP warrants that the Product will perform substantially in accordance with the
accompanying materials for a period of ninety (90) days from the date of
purchase. If an implied warranty or condition is created by Your
state/jurisdiction and federal or state/provincial law prohibits disclaimer of
it, You also have an implied warranty or condition, BUT ONLY AS TO DEFECTS FOR
WHICH CLAIMS ARE MADE WITHIN NINETY (90) DAYS FROM THE DATE OF PURCHASE. AS TO
ANY DEFECTS DISCOVERED FOR WHICH A CLAIM IS NOT MADE WITHIN THE NINETY-DAY
PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND.
Some states/jurisdictions do not allow limitations on how long an implied
warranty or condition lasts, so the above limitation may not apply to You.
DISCLAIMER. The Limited Warranty that appears above is the only
express warranty made to You and is provided in lieu of any other express
warranties or implied warrantees (if any) created by any documentation,
packaging or otherwise. EXCEPT FOR THE LIMITED WARRANTY, AND TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, HP AND ITS SUPPLIERS PROVIDE THE PRODUCT
AND SUPPORT SERVICES (IF ANY) "AS IS" AND WITH ALL FAULTS, AND HEREBY DISCLAIM
ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED OR STATUTORY,
INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) IMPLIED WARRANTIES, DUTIES OR
CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE,
SATISFACTORY QUALITY, NON-INFRINGEMENT OF TITLE, OF ACCURACY OR COMPLETENESS
OF RESPONSES, OF RESULTS, OF WORKMANLIKE EFFORT, OF LACK OF VIRUSES, AND OF
LACK OF NEGLIGENCE, ALL WITH REGARD TO THE PRODUCT, AND THE PROVISIONS OF OR
FAILURE TO PROVIDE SUPPORT SERVICES. ALSO, THERE IS NO WARRANTY OR CONDITION
OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION,
OR NON-INFRINGEMENT WITH REGARD TO THE PRODUCT.
19. LIMITATION OF LIABILITY.
a. FOR ALL SOFTWARE WHETHER OR NOT AN ACTIVATION KEY IS REQUIRED
EXCEPT TO THE EXTENT PROHIBITED BY LOCAL LAW, IN NO EVENT WILL HP OR ITS
SUBSIDIARIES, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUPPLIERS
BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE,
OR OTHER DAMAGES (INCLUDING LOST PROFIT, LOST DATA, OR DOWNTIME COSTS) ARISING
OUT OF THE USE, THE INABILITY TO USE, OR THE RESULTS OF USE OF THE PRODUCT,
WHETHER BASED IN WARRANTY, CONTRACT, TORT OR OTHER LEGAL THEORY, AND WHETHER
OR NOT HP WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PRODUCT IS NOT
DESIGNED, MANUFACTURED OR INTENDED FOR USE IN THE PLANNING, CONSTRUCTION,
MAINTENANCE, OR OPERATION OF A NUCLEAR FACILITY, AIRCRAFT NAVIGATION OR
AIRCRAFT COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT MACHINES,
OR WEAPONS SYSTEMS (COLLECTIVELY "HIGH RISK APPLICATIONS"). YOU ARE SOLELY
LIABLE IF THE PRODUCT IS USED FOR HIGH RISK APPLICATIONS, AND YOU SHALL
INDEMNIFY, DEFEND AND HOLD HP HARMLESS FROM ALL LOSS, DAMAGE, EXPENSE OR
LIABILITY IN CONNECTION WITH SUCH USE. YOU ASSUME THE ENTIRE RISK AS TO YOUR
USE OF THE PRODUCT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR
LIMITATION OF LIABILITY FOR INCIDENTIAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE
LIMITATION MAY NOT APPLY TO YOU TO THE EXTENT PROHIBITED BY SUCH LOCAL LAWS.
b. FOR SOFTWARE REQUIRING AN ACTIVATION KEY
Notwithstanding any damages that You might incur for any reason whatsoever
(including, without limitation, all damages referenced above and all direct
or general damages), the entire liability of HP and any of its suppliers under
any provision of this EULA and Your exclusive remedy for all of the foregoing
(except for any remedy of repair or replacement if elected by HP with respect
to any breach of the Limited Warranty) shall be limited to the greater of the
amount actually paid by You for the Product or U.S. $5.00. The foregoing
limitations, exclusions and disclaimers (including Warranty above) shall apply
to the maximum extent permitted by applicable law, even if any remedy fails of
its essential purpose.
REV08/51/03 End User License Agreement